Court won't block Kelly's execution

Published 4:00 am, Wednesday, June 3, 1998

With time running out and his scheduled execution at San Quentin less than a week away, Horace Kelly's bid to avoid death by lethal injection was rejected by the state Supreme Court.

By a 5-2 vote Tuesday, the court refused to review a Marin County jury's conclusion that Kelly is sane enough to die for three Southern California murders.

Supervising Deputy Federal Public Defender David Fermino said Kelly's attorneys would ask a federal judge in Los Angeles Wednesday to stay the execution and order a federal review of two key elements of Kelly's case: His claims that he is insane and that his murder trials in the early 1980s in Southern California violated his constitutional rights.

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Fermino said Wednesday that U.S. District Judge Terry Hatter in Los Angeles was expected to rule immediately on the stay of execution bid, but the issues in the case probably would go to immediate federal appellate review regardless of the ruling.

The high court justices without comment denied a hearing on claims by Kelly's attorney of numerous legal errors and irregularities in the sanity trial, the first in a California court since 1950 to consider whether a prisoner was too insane to be executed.

Kelly, 38, is scheduled to die by lethal injection June 9 for fatally shooting two San Bernardino women after attempting to rape them and killing an 11-year-old Riverside boy in three separate incidents in November 1984.

If executed, Kelly would be the fifth inmate and first African American to be put to death in California since the state resumed executions in 1992 after a 25-year hiatus.

A federal appeals court in San Francisco ruled last year that Kelly had missed deadlines for filing federal court challenges to his convictions. Kelly claims he should be given an exception to the deadlines because the filing of his habeas corpus petitions was delayed while a federal district court judge considered the condemned man's mental competency issues.

The sanity trial was ordered, under a 1905 state law after the San Quentin warden reported that psychiatric examinations had found evidence Kelly might have become insane. State law and the U.S. Constitution forbid executing the insane.

At the six-week trial in Marin County Superior Court this spring, defense lawyers offered evidence that Kelly was schizophrenic, spoke in gibberish and was under the impression he was at college, not in prison.

But psychiatrist Diane McEwen, testifying for the prosecution, hinted that Kelly might be faking his mental illness.&lt;